Opinion
Civil No. 04-1816 (HL).
May 24, 2005
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiffs filed the present action as a Federal Tort Claims Act ("FTCA") claim against the United States originating from a detention and/or arrest during the execution of a search warrant by federal law enforcement agents. 28 U.S.C. §§ 1331, 1346 and 2679(b). Plaintiffs included the following causes of action: aggression, assault and battery; false arrest, illegal imprisonment and illegal detention; a claim pursuant to Article II of the Constitution of the Commonwealth of Puerto Rico; and slander because the United States imputed on plaintiffs the commission of a criminal act which has affected their work and their personal lives, resulting in damages.
The United States filed a Motion for Summary Judgment under Fed.R.Civ.P. 56 (c)and/or for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) ( Docket No. 7). In essence, the United States submits a petition to dismiss summarily all claims pursuant to Rule 12(b)(6) for failing to state claims upon which relief can be granted or Rule 12(b)(1) for lack of subject matter jurisdiction as set forth in the motion. In the alternative, the United States submits several attachments to request summary judgment claiming there are no genuine issue of material fact under Rule 56(c).
Plaintiff then filed an Opposition to Summary Judgment and corresponding memorandum of law ( Docket No. 8). These motions, as well as the United States' Reply Memorandum ( Docket No. 17), and its Motion to Supplement Memorandum ( Docket No. 21) were referred by the Court to this Magistrate Judge for report and recommendation ( Docket No. 18).
II. BACKGROUND
The complaint filed by plaintiffs Alexander Camacho ("Camacho") and Javier Neris Rivera ("Neris Rivera"), a minor represented by his mother Ivette Rivera Rodríguez, against defendant, the United States of America, initiated from an investigation by the Federal Bureau of Investigation ("FBI") which started on May 22, 2003, of an armored car robbery in Arecibo, Puerto Rico which took place on May 19, 2003. An anonymous call to the owner of the company Ranger American Armored Car described three (3) vehicles and license plate number of one of the vehicles, a red Ford Taurus. In addition, another vehicle was identified as a white Mitsubishi Mirage Technica in relation to the burning of the van used at the robbery. The red Taurus vehicle had been recently purchased (date unknown as proposed by defendant's summary judgment motion) by one Alfredo Neris Rivera, who is identified as the adult son of plaintiff Ivette Rivera Rodríguez and the brother of minor plaintiff herein Javier Neris Rivera.
On May 22, 2003, while plaintiffs Camacho and Neris Rivera were traveling to work in Camacho's vehicle, they were intercepted and stopped by two (2) or three (3) vehicles while several individuals with FBI insignias, pointing at them with firearms, forced them out of the vehicle. While Camacho's vehicle was searched and taken away, he and Neris Rivera were thrown to the pavement and, without a search or arrest warrants, were handcuffed, taken to separate vehicles, and interrogated separately about the armed robbery for about one hour and a half. Plaintiff Camacho was subsequently released and his personal belongings were returned. Minor plaintiff Neris Rivera was taken while handcuffed to the proximity of his mother's residence which was the object of a search warrant. Neither Camacho nor Neris Rivera had a prior criminal record nor were they thereafter charged with any state or federal offense. Neither Alfredo Neris Rivera (the identified owner of the red Taurus) or any of the residents of the home subject of the search have been charged of any criminal offense, state or federal, nor any incriminating evidence was seized pursuant to the search warrant.
III. STANDARDS FOR DISMISSAL UNDER RULE 12(B)(1) OR (B)(6) AND FOR SUMMARY JUDGMENT
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may, in response to an initial pleading, file a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. It is well-settled, however, that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957); see Miranda v. Ponce Fed. Bank, 948 F.2d 41 (1st Cir. 1991).
The Court must accept as true "all well-pleaded factual averments and indulg[e] all reasonable inferences in the plaintiff's favor." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) see Berrios v. Bristol Myers Squibb Caribbean Corp., 51 F.Supp.2d 61 (D.P.R. 1999). A complaint must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory." Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 28 n. 2 (1st Cir. 1996) ( quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)). The Court, however, need not accept a complaint's "`bald assertions' or legal conclusions" when assessing a motion to dismiss. Abbott, III v. United States, 144 F.3d 1, 2 (1st Cir. 1998) ( citing Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1216 (1st Cir. 1996)). It is with this framework in mind this Court will assess the motions before it. Padilla Cintrón v. Rosselló Gonzalez, 247 F.Supp.2d 48, 51 (D.P.R. 2003).
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Pursuant to the language of the rule, the moving party bears the two-fold burden of showing that there is "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir., 1997). After the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists "a trial worthy issue as to some material fact."Cortés-Eraser v. Corporation Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deemed "material" if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a "genuine" or "trial worthy" issue as to such a "material fact," "if a reasonable fact-finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Id.
At all times during the consideration of a motion for summary judgment, the Court must examine the entire record "in the light most flattering to the non-movant and indulge all reasonable inferences in the party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir., 1994). There is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood. . . ." Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir., 1987). In fact, "[o]nly if the record, viewed in [this] manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir., 1997).
Finally, when considering this motion, unsettled issues of motive and intent as to the conduct of any party will normally preclude the Court from granting summary judgment.Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 677 (1st Cir., 1996) (reversing summary judgment and emphasizing that "determinations of motive and intent . . . are questions better suited for the jury") (internal quotation marks omitted) (citation omitted); see also Tew v. Chase Manhattan Bank, N.A., 728 F.Supp. 1551, 1555 (S.D.Fla. 1990) ("Certain issues such as fraud, intent, and knowledge lend themselves to trial, rather than summary judgment. These matters can often only be proved by reliance upon circumstantial evidence except in the rare case where there is uncontroverted proof of a `smoking gun.'"). However, "even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences [or] unsupported speculation."Ayala-Genera v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996).
A. False Arrest, Assault and/or Battery and Illegal Detention.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,. . . . U.S. Const. Amend. IV. Thus, it is now well settled that the language of the Fourth Amendment extends its aegis to the seizure of persons as well as places, e.g., Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980), and the warrantless arrest of persons constitutes one category of seizures which must be "reasonable" under the dictates of the amendment. Id. All arrests, and indeed, seizures which lack some characteristics of formal arrests, are presumptively unreasonable unless supported by probable cause. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981). See United States v. Cruz Jiménez, 894 F.2d 1, 4 (1st Cir. 1990).
Under the FTCA, the United States is liable for common law torts committed by federal employees within the scope of their employment. See 28 U.S.C. §§ 1346(b), 2674 (1994). The FTCA allows liability for false arrest or imprisonment when such torts are committed by federal law enforcement officers. See 28 U.S.C. § 2680(h) (1994). Liability is determined by the tort law of the state where the claim arose.
Under § 2674, the United States is liable for such tort claims "in the same manner and to the same extent as a private individual under like circumstances" would be, 28 U.S.C. § 2674. Section 2679 makes suit against the United States the exclusive remedy. Thus, under the FTCA, we look to "law of the place" where the alleged wrongful actions occurred, see Rodríguez v. United States, 54 F.3d 41, 44 (1st Cir. 1995), so Puerto Rico law provides the relevant standards for the substantive claims.
The United States contends plaintiff Neris Rivera, together with plaintiff Camacho, left the house to be searched and Task Force agents acting together with the FBI were justified in detaining them to prevent flight. At that time, the agents did not know either Neris Rivera's nor Camacho's identity. It is also claimed that in detaining them, the agents attempted to minimize the risk of harm to Task Force agents and by returning thereafter plaintiff Neris Rivera to the residence facilitated the orderly completion of the search.
The United States relies on the decision of Summers, 452 U.S. at 692, regarding the basis for lawful detention during the execution of a search warrant. Still, if a search or seizure is authorized by a warrant would only be determinative for who would carry the burden of proof at the evidentiary hearing since under a Fourth Amendment rationale whether the agents exercised diligent care in corroborating the anonymous tips and the reliability of the information which supported the search, an evidentiary hearing becomes necessary to elucidate the controverted facts. Thus, in the criminal arena whether a defendant is held detained or arrested by law enforcement personnel is to be determined under the totality of the circumstances and after a factual determination of the surrounding facts presented at an evidentiary hearing. Likewise, when a movant attempts to obtain summary disposition of issues resting on matters in controversy.
Still, plaintiffs, who were going to work that day, were not detained near the house in question but while on the road. An initial search of the vehicle showed no weapons nor any incriminating evidence, and said vehicle was not the object of an authorized search warrant. Both plaintiffs Camacho and Neris Rivera claim they were laid on the ground and handcuffed, in the absence of an arrest warrant or probable cause as to suspects related to a crime. According to the agents, Neris Rivera was initially an unidentified male who might have been fleeing the scene where a warrant was to be executed in relation to a robbery. Camacho's vehicle was searched, including the glove compartment and articles therein were thrown inside the car. Plaintiffs' identities were corroborated and Camacho was left free to go after approximately one and half hours later. Plaintiff Neris Rivera, instead, was brought back to the residence and presumably was detained until the search was concluded.
Plaintiffs' opposition to the United States' motion for summary judgment as to battery and assault asserts that in the Commonwealth of Puerto Rico police agents have been found negligent when firing at a person believed to be a criminal.Galarza v. ELA, 109 D.P.R. 179 (1979). Since there was no authority to arrest plaintiffs, the opposition avers the United States exceeded whatever authority it relied on as to the authorized search for summary disposition requested by defendant under Summers.
The United States, on the other hand, submits in its memorandum and supplement memorandum, arguments under Summers and thereafter held consistent under the recent Supreme Court decision Muehler v. Mena, 125 S.Ct. 1465 (2005). Muehler raises that police officers executing a search warrant at a house need no independent reasonable suspicion in order to question occupant nor to handcuffing occupants during the search.
The United States' position under Summers and Muehler is sustainable in that officers executing a search warrant have authority to detain the occupants of the premises while a proper search is conducted. However, plaintiffs herein were not at the time occupants of the house being searched, particularly plaintiff Camacho, who was not connected to the information the agents possessed nor verified by their surveillance. Plaintiffs were detained on the road while going to work, thus they could not have interfered with the search of the house, which makes the basis of the rationale of above cases cited by the United States distinguishable to this action. In fact, plaintiffs' detention and/or arrest would entail issues of fact in controversy that are still to be determined and not subject to summary disposition. If anything, plaintiffs' detentions at first glance, seem more akin to a pre-arrest pending any incriminating evidence resulting from the search that would have allowed probable cause for the arrest of the occupants or persons connected to the house, which in this particular situation was fruitless. See Wayne R. LaFave, Search And Seizure: A Treatise On The Fourth Amendment, 4 Search Seizure § 9.2 (4th ed.).
In Terry v. Ohio, "the central inquiry under the Fourth Amendment" as "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." 392 U.S.1, 19, 88 S.Ct. 1868, 1878 (1968) (cited inSummers, 452 U.S.at 701).
The United States' assertion that plaintiffs could have notified the occupants of the house ahead of time is opposed by plaintiff in that the government agents were the ones providing advance notice through a telephone call to the occupants therein present prior to entering the premises to execute the search.
Plaintiffs also submit that causes of action for false arrest and false imprisonment are well recognized in the Commonwealth of Puerto Rico citing, among others, Casanova v. González Padín, 47 P.R.R. 462, 470 (1934); Ayala v. San Juan Racing Corp., 112 P.R.Dec. 804 (1982). Thus, certain kinds of intentional torts are not included in the FTCA's waiver of sovereign immunity, but statute permits claims against the United States for the torts of "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution" arising out of "acts or omissions of investigative or law enforcement officers of the United States Government". Id. § 2680(h);Santoni v. Potter, 369 F.3d 594, 602 (1st Cir. 2004); see also Riverdale Mills Corp. v. U.S., 345 F.Supp.2d 50, 58 (D. Mass. 2004). As such, although Section 2680(h) of the FTCA, commonly known as the intentional tort exception, bars all claims arising in connection with, amongst others, "false imprisonment, false arrest [and] malicious prosecution. . . ." Id. at § 2680(h), there is exception to the general rule of sovereign immunity which does not apply, however, to the "acts or omissions of investigative or law enforcement officers," and the federal government thus remains liable for the intentional torts of those officers. Id.
The FTCA applies only if state law would impose liability on private persons or on state or municipal entities under similar circumstances. See Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987); Aguilar v. United States, 920 F.2d 1475, 1477 (9th Cir. 1990). "Like circumstances" for purposes of the FTCA means analogous circumstances, not identical ones. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) ( citing Indian Towing Co. v. United States, 350 U.S. 61, 64-66, 76 S.Ct. 122 (1955).
§ 2680(h) includes an important proviso which is directly implicated in this case:
Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title [the FTCA,] shall apply to any claim arising . . . out of assault battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.
Finally, the United States' request for summary disposition incorporates the original affidavit of Special FBI Agent Gregory Beninato in support of the application of a search warrant for the residence of plaintiff Neris Rivera's mother and a supplemental affidavit of October 29, 2004, to clarify some information as to one of the vehicles referred in the original affidavit. It also incorporates an affidavit by Mrs. Ivette Rivera which rebuts some of the information contained in the supplemental affidavit. Ms. Rivera clarifies that, contrary to Agent Beninato's statement, only she and her daughter were present at the time of the search while plaintiff Neris Rivera was brought over by the FBI after being arrested without an arrest warrant. She also affirms: not having resisted the search of the house but having requested to see a valid court order prior to allowing people into her house which was not shown to her; that information contained as to the Ford Taurus being present while the van that supposedly took off from the robbery and that was thereafter burned during the night was incorrect; neither the anonymous source who overhead about the bank robbery nor its reliability were corroborated and the information provided as to her adult son and his wife, which prompted the search warrant to Mrs. Rivera's home, was not credible nor reliable.
From the United States' own submission of sworn statements, there is controversy of material facts between Agent Beninato's affidavits and a material witness to the search and related events, Ms. Ivette Rivera. Thus, summary judgment is not appropriate.
In view of the foregoing, it is recommended the United States' request for summary judgment as to false arrest, assault and/or battery and illegal detention be DENIED.
As the First Circuit pointed out, "since the false arrest and false imprisonment claims under Puerto Rico law raise no relevant distinction in the present context, we treat them as identical causes of action." Rodríguez v. United States, 54 F.3d 41, 44 (1st Cir. 1995) ( citing as compare Ayala v. San Juan Racing Corp., 112 P.R.Dec. 804, 812 (1982)); see also Casanova v. González Padín, 47 P.R.R. 462, 470 (1934). See also Abreu-Guzmán v. Ford, 69 F.Supp.2d 274 (D.P.R. 1999).
B. Slander.
Insofar as slander, one must bear in mind that 28 U.S.C. § 1346(b) provides that federal courts shall have jurisdiction over FTCA claims "subject to, . . . section 2680, the exceptions found in that section define the limits of federal subject matter jurisdiction in this area.". See Hydrogen Technology Corp. v. United States, 831 F.2d 1155, 1161 (1st Cir. 1987). Section 2680(h) provides the FTCA does not apply to "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights" (emphasis supplied). Intentional torts exception to FTCA's waiver of United States' sovereign immunity barred slander claim, Raz v. U.S., 343 F.3d 945 (8th Cir. 2003). Likewise, defamation suits against the United States are prohibited. An individual who is defamed by a federal employee acting within the scope of his/her employment has no remedy due to the protections afforded by the Westfall Act and the FTCA. See B A Marine Co., Inc. v. American Foreign Shipping Co., Inc., 23 F.3d 709, 714-715 (2d Cir. 1994); Aviles v. Lutz, 887 F.2d 1046 (10th Cir. 1989). See also Gregory G. Sarno, J.D., Annotation Applicability of Libel and Slander Exception to Waiver of Sovereign Immunity under Federal Tort Claims Act ( 28 U.S.C.A. § 2680(H)), 79 A.L.R. Fed. 826.
In examining a complaint, we are bound to look beyond the literal meaning of the language to ascertain the real cause of the complaint." Jiménez-Nieves v. United States, 682 F.2d 1, 6 (1st Cir. 1982). In Jiménez-Nieves, the court rejected a claim for pecuniary and non-pecuniary damages arising from the erroneous dishonoring of a Social Security check. The Court noted the dishonoring of the check implicitly communicated defamatory statements about plaintiff, and concluded the claim resounded in the heartland of the tort of defamation which was barred by Section 2680. Id. at 6. Brumfield v. Sanders, 232 F.3d 376, 383 (3d Cir. 2000) (defamation exception to the FTCA barred officer's intentional tort claim).
Slander claims are not permissive under FTCA and the court lacks subject matter jurisdiction over them, no matter how plaintiffs dress them up. See Dalewhite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956 (1953) (holding that where discretionary function exception of § 2680(a) applied, district court lacked subject matter jurisdiction over cause of action), partially overruled on other grounds by Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374 (1957); Dynamic Image Technologies, Inc. v. U.S. 221 F.3d 34, 37; see also Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997) ( also holding no subject matter jurisdiction where § 2680(a) applied); that the claims for intentional infliction of emotional distress and loss of consortium through "verbal abuse and slander" also "arose out of" slander within the meaning of 28 U.S.C. § 2680(h); Aversa v. U.S. 99 F.3d 1200, 1207 (1st Cir. 1996).
Turning to the instant case, plaintiffs' fourth cause of action is a slander claim because the United States allegedly imputed on each plaintiff the commission of a criminal act, which was made public, and the imputation was false. Thus, plaintiffs were deprived of the right to be protected from abusive attacks on their honor, reputation and private life. Therefore, affecting their personal lives and resulting in damages ( Complaint VI. Slander ¶¶ 1-8).
In view of the foregoing, plaintiffs' slander claim is subject to dismissal for the Court lacks jurisdiction to entertain such a claim under the FTCA. Accordingly, it is recommended that the United States request to dismiss plaintiffs' slander claim be GRANTED.
C. Negligent Infliction of Emotional Distress.
Because there is limited authority in Puerto Rico concerning the elements of the tort of intentional infliction of emotional harm, one must look to other jurisdictions. The tort of intentional infliction of emotional harm exists when "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another." Restatement (Second) of Torts § 46 (1965). See Thorpe v. Mutual of Omaha Ins. Co., 984 F.2d 541, 545 (1st Cir. 1993) (conduct must be "extreme and outrageous," "beyond all possible bounds of decency," and "utterly intolerable in a civilized community"). Moreover, courts have allowed employers some latitude in investigating possible employee misconduct. See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1558 (10th Cir. 1995) (the court held plaintiff's allegations that her employer yelled at her, pushed her back down into her chair, touched her arm and blocked her exit from the room during questioning, did not rise to the level of outrageousness required to state a cause of action for intentional infliction of emotional harm). Gross v. United States, 676 F.2d 295, 303-04 (8th Cir. 1982) (intentional-infliction-of-emotional-distress claim not barred by FTCA's intentional-torts exception); Nurse v. United States, 226 F.3d 996, 999, 1002 (9th Cir. 2000) (invasion-of-privacy claim based on alleged illegal searches by federal customs agents fell within FTCA's law-enforcement-officer proviso to intentional-torts exception); Black v. Sheraton Corp. of Am., 564 F.2d 531, 539-40 (D.C. Cir. 1977) (plaintiff stated claim for invasion of privacy by intrusion based on FBI's illegal eavesdropping under FTCA; intrusion claim was not barred by libel or slander exceptions because plaintiff was not just suing for damage to his reputation, but instead was suing for physical trespass and unlawful invasion of his privacy that caused that damage); Birnbaum v. United States, 588 F.2d 319, 328 (2d Cir. 1978) (torts of trespass and invasion of privacy do not fall within intentional-torts exception). Raz, 343 F.3d at 948.
As such, plaintiffs have claimed liability and damages as a result of defendant's actions in obstructing the performance of their work (being absence the day of the detention), affecting their jobs, emotional damages related to loss of sleep, anguish and phobias of being followed or being under surveillance for no reason, belief that acts and communications are being intercepted, recurrent thoughts about the intervention, and expecting that at some point or for no apparent reason defendants will reappear and for no reason interfere with their lives, among others. (Complaint ¶ VII).
Plaintiffs' opposition submits that, upon an evaluation of the facts and circumstances present in the case, warrants first a determination whether "a prudent man in believing that the petitioner had committed or was committing an offense", as well as, whether no probable cause existed under the totality of the circumstances for actions taken by the United States. This would be surmountable even in the presence of an authorized warrant since plaintiffs claim defendants' actions were predicated on lack of corroborated and reliable evidence to support the search warrant application, which amounted to negligent actions and the resulting intentional or negligent infliction of emotional distress as it arises from plaintiffs' detention and/or seizure.
In turn, the United States seeks summary disposition on the grounds that under Summers and United States v. Rodríguez, 68 F.Supp.2d 104 (D.P.R. 1999), plaintiffs' detentions were justified and reasonable under the circumstances and for not being extreme and outrageous conduct but objectively reasonable under the circumstances.
The FTCA excepts certain intentional torts from its general waiver of sovereign immunity. 28 U.S.C. § 2680. One of these exceptions is "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights." 28 U.S.C. § 2680(h). The exceptions in 28 U.S.C. § 2680 are interpreted according to federal law in order to avoid any dependence of federal subject matter jurisdiction upon state law. See Hydrogen Technology Corp. v. U.S., 831 F.2d 1155, 1161 (1st Cir. 1987); see United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294 (1961).
Still, even if a district court could properly decide that a claim for false imprisonment or false arrest is precluded by section 2680(h), it does not mean that a complaint does not give rise to other causes of action available under the FTCA. There is no exception in section 2680 which disallows a claim for the infliction of emotional distress by government agents. Claims against the government for intentional infliction of emotional distress are not excepted from the FTCA. Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990). Neither has such an exception been read into the statute and the Supreme Court has taken a very strict approach to the reading of section 2680. It has held that "[t]here is no justification for this Court to read exemptions into the Act beyond those provided by Congress." See Rayonier, Inc. v. United States, 352 U.S. 315, 321, 77 S.Ct. 374, 378 (1957). Even in the case where the facts of the complaint might give rise to similar torts, "the partial overlap between . . . two tort actions does not support the conclusion that if one is excepted under the Tort Claims Act the other must be as well." Block v. Neal, 460 U.S. 289, 298, 103 S.Ct. 1089, 1094 (1983). Therefore, even if the claim for intentional infliction of emotional distress may overlap with a claim for false imprisonment and/or false arrest, which is excepted, it does not follow that the first claim is also excepted.Santiago-Ramírez v. Secretary of Dept. of Defense, 984 F.2d 16, 20-21 (1st Cir. 1993). As such, even if this Court would grant summary judgment on one cause of action related to false imprisonment or false arrest, the remaining claim for intentional infliction of emotion distress may survive.
Thus, it is recommended the United States' request to dispose by summary judgment of above plaintiffs' claims since the government is not immune from suit based on a claim of intentional infliction of emotional distress, should be DENIED.
D. Constitutional Claims.
Plaintiffs include a cause of action pursuant to Article II of the Constitution of the Commonwealth of Puerto Rico. This cause alleges the Task Force violated plaintiffs' "liberty rights", "rights to be protected from abusive attacks on their honor, reputation and private life" and "dignity". ( Complaint ¶ V).
A review of the Complaint in this case shows it is an FTCA claim and not a Bivens claim or a 42 U.S.C. § 1983 claim. Evidence of this is the fact the United States is the only defendant and no individual defendants were sued. Furthermore, no Bivens or § 1983 claims are specifically asserted in the Complaint against federal agents for federal constitutional violations.
Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
In fact, Ivette Rivera Rodríguez, her husband and two of her daughters filed a separate action in relation to the search of their house under Bivens and is now pending trial in Civil No. 04-1322 (JP).
Plaintiffs' constitutional claims fail because the United States has not waived its sovereign immunity for suits seeking monetary damages for alleged violations of the U.S. Constitution or the constitutions of other states. The bar of sovereign immunity extends to constitutional claims. Puerto Rico Public Housing Admin. v. U.S. Dept. of Housing Urban Development, 59 F.Supp.2d 310, 322 (D.P.R. 1999). See United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) ("claims based directly on Fifth Amendment violations are likewise barred by the doctrine of sovereign immunity"); Kelly v. United States, 512 F.Supp. 356, 362 (E.D.Pa. 1981) ("Even where there exists a direct cause of action under the Constitution, the United States is not liable for the deprivation of constitutional rights unless it has waived immunity from suit. . . .")
In holding that a constitutional tort claim is not cognizable under the FTCA, the Supreme Court in F.D.I.C. v. Meyer, 510 U.S. 471, 476-78, 114 S.Ct. 996, 1001 (1994) (citations omitted), stated: "[W]e have consistently held that § 1346(b)'s reference to the `law of the place' means law of the State — the source of substantive liability under the FTCA. . . . By definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right."
Thus, the FTCA waives sovereign immunity but only for torts created by state law and not federal law. See, e.g., Westbay Steel, Inc. v. United States, 970 F.2d 648, 650 (9th Cir. 1992); Moye v. U.S., 735 F.Supp. 179, 180 (E.D.N.C. 1990) (FTCA does not create new causes of action, but merely imposes liability for torts already recognized under state law.).
In view of the above, it is recommended that the United States request to dismiss plaintiffs' constitutional claims included in the third cause of action be GRANTED.
CONCLUSION
In view of the foregoing, it is recommended the United States' request for summary judgment as to plaintiffs' claims of false arrest, assault and/or battery, illegal detention and negligent infliction of emotional distress BE DENIED. In addition, it is recommended that the United States' motion to dismiss plaintiffs' third cause of action for state constitutional claims and the fourth cause of action for slander BE GRANTED. Accordingly, it is thus recommended that the United States Motion for Summary Judgment ( Docket No. 7) BE GRANTED IN PART AND DENIED IN PART.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").
IT IS SO ORDERED.